Warranted confusion

The High Court, exhausted after its unanimous feat in the Pell appeal, broke into clusters to come up with its thinking on The Sunday Telegraph’s challenge to Constable Plod’s warrant to search and seize data and documents from journalist Annika Smethurst’s home.

After all, Smethurst was the reporter who brought us news of plans being hatched to extend the powers of the Australian Signals Directorate to covertly access data about the life and movements of Australian citizens – a story that was fair and square in the public interest.

The police copied data from her mobile phone to a laptop and then from the laptop to a USB drive, deleted the data from the laptop, and took away the USB drive.

The High Court did one of its amazing straddles, finding that the warrant was invalid because of overzealous drafting by the Australian Federal Police, yet the AFP could keep and rely on the documents they had copied and taken.

In February Justice Wendy Abraham in the Federal Court upheld the warrant the AFP used to take documents about ABC stories on Australian special forces servicemen in Afghanistan who allegedly killed unarmed men and children.

On the basis of the findings in the Smethurst case, it is likely the High Court would have found the warrant executed on the ABC to be invalid, but still let Plod keep and use the seized material.

This is not much of a victory for the media. There was no consideration by the High Court of the public interest in investigative journalism, the public’s right to know, the scope of the implied freedom, and the protection of journalists’ sources.

Melbourne media silk Matt Collins told Gadfly: “The High Court’s judgement might lead to more tightly drafted search warrants, but it will not deter future raids on journalists and media organisations. For that, law reform is needed, starting with a recognition that investigative journalism is in the public interest and not a crime, even – especially – when it exposes stories that the powerful would prefer never to see the light of day.”

Pell’s holy trinity

Great thunderclaps rained down on our heads from The Catholic Boys Daily at Easter as it raised the earthly body of George Pell heavenwards.

Judging by the purple panegyrics from Choirboy-at-Large Paul Kelly, Priestly Frank Brennan and Monsignor Chuckles Henderson, a sainthood cannot be far off for our George.

Kelly thought Pell’s opponents “broke the conventions and retreated from legal reasoning”. They “fomented a mood bordering on irrational vindictiveness”, such that it became a “political trial”.

Brennan believes Pell’s prosecution has the hallmarks of a “broken-down criminal justice system”. He went on, without care of deforestation, to microscopically analyse the role and movements of the mitre and crozier, the function of sacristans, the priests’ sacristy, the archbishop’s sacristy, altar boys, choirboys, robing, disrobing, processions, the motley, the greasepaint, the crowd.

Father Brennan could not be happier that the High Court corrected the loose thinking of the jury.

Monsignor Henderson’s thesis was that a huge “media pile-on” infected the jury process with “unconscious bias”. What chance was there for a dispassionate trial once Gadfly and other hacks had a few jabs at the old blighter?

The underlying message in all this is that there should be root and branch reform of the Victorian justice system.

Then on Tuesday night the nation was rendered comatose by the Spooky Dutchman’s patsy interview with Pell. Of course, these pundits had found the accused not guilty even before the legal process began.

At least it’s refreshing that palaeo-conservatives are backing the Areopagus to the hilt on this one. Only in February, the decision in the Aboriginal aliens case, that Indigenous offenders born overseas could not be deported from Australia, saw the majority High Court judges being hung from tree branches and whacked like piñatas.

Father knows best

Father Frank Brennan’s father is Gerard Brennan, a former judge of the High Court and later chief justice.

In 1994, giving a minority judgement in the case M v The Queen, he carefully considered the role of the appellate court in reviewing jury decisions. Justice Brennan reminded us that “the jury have advantages in the finding of facts which are denied to an appellate court”.

Ultimately, he concluded that “an assessment of evidence by an appellate court is a poor substitute for the assessment made by the jury. And that is so for a very basic reason: our belief in the validity of the life experience of juries.

“When, as in this case, a finding of guilt or innocence depends on nothing but a contest between a child and her father as to what happened between them in the absence of others, I am unable to substitute any view that I might form for the view formed by the jury. Indeed, I echo the frequent observation of trial judges that the responsibility rests with the jury and not with me.”

Mortal wombat

Honestly, what vivid life experiences can High Court jurists bring to the table when we’ve got Judge Jeanine Pirro on Fox News? She has been a county judge and a district attorney, but her main qualification is that she is so far up the Pussy Grabber’s fundament that she is cleaning his teeth from behind.

Last month she appeared on her program looking “dishevelled” and there was speculation that she may have had a tincture or two before the cameras rolled. The official Fox position was that there were “technical difficulties”.

Then earlier this month in a patriotic tirade she extolled Trump as the ultimate wartime leader for the brilliant manner in which he has handled the outbreak of coronavirus – propelling the United States to the top of the death charts.

In the process, she included beloved Australian wombats in an ark of wild animals responsible for causing the disease. In Wuhan’s wet markets, Judge Jeanine declared, “wombats and pigs and other wild animals lie next to each other”.

Wombats being slaughtered and eaten by the Chinese – a judicial finding that should be appealed, immediately.

Finger on the Dutton

A joyous nation is relieved that Benito Dutton is feeling better after his brush with coronavirus.

It was reported last month that Macquarie Street lobbyist Joseph Tannous came down with the plague after attending a Liberal Party fundraiser with Benito and other Nasty Party leaders on March 10. Reports from field agents indicate a Sydney factory owner, Marko Franovic, also caught the dreaded infection while attending the same feast.

Mr Franovic is about 80 and still in hospital four weeks later, which makes you wonder at the soundness of the deputy chief medical officer’s advice that Dutton would only have been a risk in the 24 hours before he showed symptoms on March 13.

That’s the trouble with advice in a rapidly changing medical environment. For instance, on January 27, the CMO, Brendan Murphy, advised there is “no evidence yet of sustained human-to-human transmission outside of the Hubei province”.

Consequently, he thought there was little need to roll out quarantine measures for international arrivals. Yet, four days earlier, on January 23, the World Health Organization convened its emergency committee “to consider the outbreak of the novel coronavirus in China with cases also reported in the Republic of Korea, Japan, Thailand and Singapore”.

On March 15, five days after Liberal nabobs were clustered diving into the pockets of donors, the CMO said that shaking hands at that stage was generally fine, although Schmo, who by now had appointed himself commander-in-chief, warned only hours afterwards that people should not shake hands.

Then on April 14, Doc Murphy said staff from a Tasmanian hospital had attended an “illegal dinner party”, only to discover this was a rumour – one of the rare rumours that didn’t turn out to be trueish.

Back to Benito. According to investigating journalists, the finger of suspicion for the Ruby Princess catastrophe can be sheeted home to a Border Force wallah who gave the green light for the plague ship to dock at Circular Quay.

At last count at least 19 deaths have been linked to the cruise ship and hundreds of passengers have been infected. Bret Walker, fresh from his Pell victory, is on the case for Aunty Gladys. Lawyers are lining up to sue the pants off anyone they can get hold of.

Then we find the AFP was exempt from mandatory quarantine after flying on commercial aircraft with people forced into government-mandated exile in the Northern Territory. The AFP personnel were smartly circulated into Aboriginal communities to assist in the “protection” of remote communities.

The worst awaits us, judging by Benito Dutton’s sloppy oversight of the various branches of his uniformed enforcers.

Big Fang theory

Thank the heavens we still have an ABC. We can marvel at the broadcaster’s feats of endurance and we can also enjoy some of the finest memos known to mankind.

This one from Gavin Fang, who is managing editor, coverage, and news diversity lead: “A key strategic goal for the whole ABC is to look and sound like modern Australia in our workforce and our content.”

A special advisory group has been formed with a mission to “create a culture within the newsroom to seek out diverse talent in order to look and sound like Australia…”

News skewed to the requirements of diversity – you have been warned.

Tips and tattle: [email protected]

This article was first published in the print edition of The Saturday Paper on Apr 18, 2020 as "Gadfly: Warranted confusion".

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Richard Ackland is The Saturday Paper’s legal affairs editor. He publishes 500Words.com.au.